It’s a scenario that used to be quite common a decade ago: A husband and wife break up when one or the other turns out to be gay. The custody arrangements work fine for awhile, but then the newly gay ex-spouse finds a partner and sets up a household. Suddenly, the former spouse decides that Johnny or Sally shouldn’t be “exposed” to the same-sex shenanigans and sues for sole custody.

Too often in the past, a court would agree, breaking up a couple or disrupting a child’s life on homophobia alone.

This time around, a Georgia Appellate Court slammed a lower court judge, reinstating a custody order that had recently been revised.

The couple, Kelvin King and Victoria Moses, lived together as unmarried parents and legally separated in 2002. According to court papers, Moses was awarded physical custody of their daughter, now 12, while King was ordered to pay $850 a month in child support.

By December 2004, King was $16,500 behind in his payments. He was sent to jail and given a payment schedule. The day after that court decision, King filed a motion for custody, arguing that “changed circumstances” justified a set of new arrangements, whereby the girl would live with him, and Moses would pay the child support.

In his motion, King insisted that his former partner had several gay lovers over the recent years, and was now living with her latest paramour in the same house as their daughter. The girl, he continued, was in the continuous company of gay men and lesbians, and had fallen behind in school.

He also alleged that the local department of family services “has been contact by Gwinnett County School regarding marks on child by Defendant involving same-sex partner.”

In ruling for the father, the lower court judge insisted that sexual orientation had nothing to do with his decision: “I want to be clear that it has nothing to do with the fact that person living with you is female,” he said. “It was to do with the fact that you are in what I view as a meretricious relationship in front of your child. And I do find that to be a significant change in circumstance.”

A “meretricious relationship” in this context is basically legalese for “shacking up.” The father, noted the judge approvingly, was married and living in a four bedroom home with two other children from his new wife.

In a second round of litigation before the same court, the judge modified his first decision, awarding joint custody to both parents, in part based on testimony from their daughter. With the help of Lambda Legal Defense and

Education Fund, Victoria Moses appealed the entire business to the state appellate court, which ruled in her favor on Sept. 27.

In order for a custody order to be revised, a “material change in circumstance” must have evolved that harms the child.

In fact, the appellate court noted, Victoria Moses had been involved with one or more same-sex partners at the time the original custody arrangements were set. If anything, her home life had become more stable with the arrival of her latest partner, who she had been seeing for over a year.

Further, there was no evidence that the girl had been harmed by the developments. She was doing well in school and was happy.

As for King and his stable household, he was married in 2001, a year before the custody order was issued to begin with

The appellate court pointed out that whatever one thinks of unmarried couples sharing a home, it is not grounds for denying or changing custody decrees, unless a child is being harmed. And finally, the fact that the trial judge reversed its own order turned the entire lower court rationale on its head.

“This is really great news for our client, and for gay and lesbian parents in Georgia,” said Lambda’s Jack Senterfitt, a senior staff attorney out of the southern office. “It means custody arrangements can’t be challenged just because a parent is gay or lesbian.”